The Intellectual---But Not Political---AUMF Consensus

A real consensus is developing on the contours of an appropriate AUMF---at least among academics and other commentators. It wasn’t always this way. For months, we, among many others, argued (quite vociferously at times) on what an AUMF to fight al Qaeda and other associated armed groups ought to look like. But the rise of ISIL has greatly diminished the controversy. As Steve Vladeck has already noted, this consensus, however, has not translated to the political branches. A deeply flawed administration draft authorization to use military force has done little but engender often legitimate criticism on all sides of the aisle.

Things need not be this way. In fact, we recently agreed (on a Rational Security podcast) that we could draft a consensus AUMF in less than an hour. And we have no doubt that would be true.

Take Ben’s bold assertion in his testimony before the House Armed Services Committee last week: “many---though not all---of the legitimate criticisms that people of diverse politics are making against the administration’s draft do not apply, or apply with significantly lesser force, to a draft AUMF that Jack Goldsmith, Matthew Waxman, my co-panelist Robert Chesney, and I put forth last year. Given the widespread criticisms of the administration’s draft, I want to suggest that our draft may provide an alternative way forward for this body as it contemplates authorizing military force against ISIL.”

Speaking this week on the Rational Security podcast, Jen had a simple response: “Amen!”

And she is not alone. Steve, also once one of Ben’s prime sparring opponents, wrote on Friday: “I agree completely with Ben that the “Draft AUMF To Get the Discussion Going” that Ben, Bobby, Jack, and Matt proposed back in November is, in almost every important way, a dramatic improvement over the Administration’s proposed bill.” He goes on to point out that, other than the absence of a strategic objective, which Ben and his coauthors weren’t in any position to meaningfully address, their draft AUMF does not provoke any of the other six questions that he, Jack, and Ryan Goodman encouraged Congress to ask about the Administration’s bill. As he writes:

It’s clear (emphatically so) about its relationship with the 2001 AUMF and the sunsetting of all use-of-force authority in three years; it includes robust (and specific) reporting requirements; it incorporates the prevailing understanding of “associated forces,” rather than making up a new one; and it doesn’t try to impose completely Delphic restrictions on “enduring offensive ground combat operations,” whether or not large-scale ground troops shouldbe authorized. It may raise other concerns . . . but unlike the fairly fundamental problems raised by the Administration’s distressingly vague draft, I suspect compromise on those points can easily be found.

The consensus developing on the contours of an appropriate AUMF is exciting. It’s an example of a long-term dialogue generating agreement where there used to be sharp disagreement. Jen and Steve, were, after all, amongst the leading critics of the first draft AUMF Ben helped write. Now they largely endorse his current draft AUMF.

Conversely Ben, initially a vocal critic of the competing Just Security principles for a new AUMF put forward by multiple legal scholars, including Jen and Steve, after a period of clarification and refinement, now largely endorses their view. Of the six key (missing) elements of an AUMF for ISIL that several of those signatories recently produced in connection with a hill briefing last week, Ben generally concurs with all but one.

So what, concretely, does this consensus AUMF look like?

It addresses both the ISIL AUMF and the underlying 2001 AUMF, and includes sunsets on both the authority to fight ISIL and the authority to fight Al Qaeda. There are different ways of getting there, but the key point of consensus is that both the authority to use force against ISIL and the authority to use force against al Qaeda should sunset contemporaneously. Otherwise, an ISIL sunset is rendered essentially meaningless. A future administration can simply revert to the 2001 AUMF as a means of continuing the conflict against ISIL.

It makes clear that the ISIL-specific provisions provide the sole source of statutory authority for fighting ISIL. This also has multiple possible pathways. But so long as the 2001 AUMF remains on the books (as it would under the administration’s draft), any separate ISIL specific authorization should make clear that it provides the sole source of authority for the use of armed forces against ISIL. Otherwise, the ISIL AUMF simply adds to existing authorities that already exist pursuant to the 2001 AUMF, making it largely redundant and opening up the possibility of the executive relying on the 2001 AUMF as an end run around any restrictions in an ISIL-specific AUMF it doesn’t like.

To the extent that the AUMF authorizes force against “associated forces,” it defines associated forces in accordance with recognized principles of co-belligerency. The definition offered to date by the Obama administration to date---which is limited to those organized armed groups that have actually joined the fight as co-belligerents with ISIL (or Al Qaeda) against the United States and its coalition partners---is a good place to start. By comparison, the excessively broad administration definition raises the specter of Congress's authorizing the use of force against any loosely-affiliated group, or even individuals, that claims to carry on ISIL’s anywhere around the world. To be sure, such individuals and groups might one day pose the U.S. a serious threat; but in such a situation, Congress could and should provide separate and specific authorization against any emergent groups---not effectively grant the administration a blank check.

It includes meaningful reporting requirements. These should be as specific as possible and should, unlike the administration’s draft proposal, include a public reporting requirement as well. As Ben argued in his testimony before Congress last week, it should, at a minimum, require public reports of the list of organizations that the administration considers associated forces of the organizations that it's authorizing force against.

It requires compliance with international law. This can be done explicitly (as Ben and his coauthors do in their draft legislation) or implicitly, by authorizing the use of “necessary and appropriate force” (a term of phrase that a plurality of the Supreme Court has interpreted as incorporating international law requirements). This requirement should not be muddied, as it is in the President’s draft, with the caveat that what is “necessary and appropriate” depends on a presidential determination.

The fact that this intellectual convergence has no analogue on the political side is a disappointing reflection on our political leaders. And there is blame all around. Many Republicans are hung up on the issue of the sunset provision, arguing that such provisions signal a lack of resolve. But a sunset does not mean an end to conflict; it is simply a mechanism to force Congress to stay engaged and keep on tailoring the authorization over time. It makes no sense to create another temporally open-ended AUMF that we will interpret 14 years from now to apply to national security threats we couldn’t have even imagined in 2015.

Meanwhile, key Democrats are hung up on the issue of ground troops, and are willing to hold up an AUMF on that issue alone. Others (quite unrealistically) insist on outright repeal of the 2001 AUMF, without providing an interim authority in its place---even to fight groups like al Qaeda in the Arabian Peninsula.

That said, the bulk of the fault lies with the administration. Had the administration started with something more reasonable---something, say, along the lines of the Just Security principles or the Ben, Bobby, Jack, and Matt draft---the criticisms would have been much more muted and less convincing. (Indeed, the administration would actually have had a wide range of supporters.) Instead, the administration, for reasons we still don’t fully understand, is playing the very cynical game of trying to create the optics of restraint with none of its reality. The transmittal letter to Congress talked of wanting to “refine and ultimately repeal” the 2001 AUMF, but the draft legislation does neither. The definition of “associated force” is so broad as to arguably lay the groundwork for the type of global war on terror that the administration has long officially decried. And the anemic reporting requirements are, well, anemic enough to make mockery of the administration's repeated mantra of transparency.

All, however, is not lost. There are serious members of Congress across both sides of the aisle, as demonstrated by the thoughtful questioning at House Armed Services Committee hearing last week. Committee leadership and members were intellectually engaged, committed to putting the conflict with ISIL on solid statutory footing, and seemed to have a deep understanding of the relevant issues. There is at least reason to hope that key members of Congress will step up to the plate and produce a better bill than the administration has served up. There is intellectual agreement as to where they should start.

Jennifer Daskal joined American University Washington College of Law (WCL) in 2013 as an Assistant Professor of Law. She teaches and writes in the fields of criminal law, national security law, and constitutional law. From 2009-2011, Daskal was counsel to the Assistant Attorney General for National Security at the Department of Justice and, among other things, served on the Secretary of Defense and Attorney General-led Detention Policy Task Force. Prior to joining DOJ, she was the senior counterterrorism counsel at Human Rights Watch, worked as a staff attorney for the Public Defender Service for the District of Columbia, and clerked for the Honorable Jed S. Rakoff. She spent two years before joining WCL’s faculty as a national security law fellow and adjunct professor at Georgetown Law Center.